United States v. Herra-Herra

United States of America Plaintiff- Appelleev.Crispin Herra-Herra Defendant-Appellant

Submitted: May 11, 2017

Appeal
from United States District Court for the District of
Nebraska - Omaha

Before
RILEY, BEAM, and SHEPHERD, Circuit Judges.

BEAM,
Circuit Judge.

Crispin
Herra-Herra appeals his conviction, following a jury trial
for conspiracy to distribute methamphetamine. Herra-Herra
also appeals his 151-month sentence as substantively
unreasonable. We affirm the district court.[1]

I.BACKGROUND

The
evidence at trial established that federal agents discovered
Herra-Herra's involvement in a methamphetamine
distribution conspiracy while investigating a particular
Mexico-based drug trafficking organization. By virtue of a
tracking device that was placed on a co-conspirator's
vehicle, as well as a "ping" tracking device for
the phone of another co-conspirator, officers discovered that
Herra-Herra was involved in a multi-layered conspiracy to
distribute multiple pounds of methamphetamine into the Omaha
area. Herra-Herra arrived in Omaha in November 2014, shortly
before his arrest in December 2014. In the short time
Herra-Herra was in Omaha prior to his arrest, he helped to
maintain a stash house on Lawndale Drive. Drug-packaging
paraphernalia was found during a search of the house, and
several pounds of methamphetamine were found buried in the
back yard. Surveillance indicated that Herra-Herra had
access[2] to the inside of this house, and he was
there by himself at least once. Surveillance pictures showed
Herra-Herra and another co-conspirator shoveling snow at the
Lawndale house.

On
December 9, 2014, Herra-Herra and a co-conspirator spent
about two hours in another house, believed by law enforcement
to be Herra-Herra's residence, at 3706 Q Street in Omaha.
The co-conspirator was carrying a child's backpack over
his shoulder when he arrived, and he later left with the same
backpack. About an hour later, the co-conspirator was
arrested during a traffic stop, and officers recovered
approximately $169, 000 of shrink-wrapped, taped, and
rubber-banded bundles from the backpack. When officers
conducted a search, pursuant to a warrant, of
Herra-Herra's residence on Q Street later that same day,
they found a vacuum sealing machine, bags, and tape, similar
to the materials used to package the $169, 000 in currency.
There was also evidence that Herra-Herra used and owned
multiple phones, which an agent testified was indicative of
drug-dealing activity. All of the foregoing circumstantial
evidence was established by way of testimony from three case
agents, a co-conspirator, and the landlord who owned one of
the houses used in the conspiracy.

The
case was tried before a jury on February 16 and 17, 2016. The
jury received the case at 2:52 p.m. on February 17, and ended
the day without a verdict, but resumed deliberations on
February 18. Shortly before 3:00 p.m. on February 18, the
jury submitted the following question: "What happens if
we don't come to a verdict?" The district court gave
counsel the option of giving an Allen[3] charge or
instructing the jury that if it could not come to a verdict,
the government would decide whether to retry the defendant or
dismiss the case. The government voted for the former and
Herra-Herra advocated for the latter. The court gave the jury
the latter instruction. Shortly thereafter, at 3:25 p.m., the
jury informed the court it was deadlocked. The court asked
counsel if they preferred an Allen charge or for it
to declare a mistrial. Again, the government chose the former
and Herra-Herra chose the latter. Noting that the jury had
been out twenty-four hours after a day-and-a half trial, the
court chose to give the jury an Allen charge. After
the Allen charge, the jury returned a guilty verdict
at 10:10 a.m. the next morning, February 19. The jury
deliberated for roughly three hours after receiving the
Allen charge.

At
sentencing, the presentence investigation report found
Herra-Herra responsible for 25.3 kilograms of
methamphetamine, but the district court held Herra-Herra
responsible for only 11.7 kilograms, resulting in a
Guidelines sentencing range of 151 to 188 months. Herra-Herra
asked the district court to depart to the mandatory minimum
of 120 months, but the district court declined the request
and sentenced Herra-Herra to the bottom of the range, 151
months in prison. Herra-Herra appeals, arguing the district
court erred in giving the Allen charge and failing
to declare a mistrial; that there was insufficient evidence
to support his conviction; and that his sentence was
unreasonable.

II.DISCUSSION

A.Jury Deliberations

"An
Allen-charge is a supplemental jury instruction that
advises deadlocked jurors to reconsider their
positions." United States v. Walrath, 324 F.3d
966, 970 (8th Cir. 2003) (quoting United States v.
Glauning, 211 F.3d 1085, 1086 n.2 (8th Cir. 2000)). An
Allen charge is neither inherently coercive nor
prejudicial. United States v. Aldridge, 413 F.3d
829, 832 (8th Cir. 2005). Nor does a defendant have a right
to an instruction telling the jury of a right to reach no
decision. United States v. Arpan, 887 F.2d 873, 876
(8th Cir. 1989) (en banc). An Allen charge is
allowable so long as the instruction is not impermissibly
coercive, which is determined by (1) the instruction's
content; (2) the length of the deliberation after the
instruction; (3) the total length of deliberations; and (4)
any other indicia of coercion. Walrath, 324 F.3d at
970. Although Herra-Herra asked that the district court
declare a mistrial instead of giving the Allen
charge, the government alleges that Herra-Herra did not
object to the Allen charge at the time it was given
and we should review for plain error. Having examined the
transcript, we are not as sure as the government about
Herra-Herra's lack of objection, as his counsel twice
voiced his preference for the options other than the
Allen charge. On the other hand, counsel did not
object further when the district court announced that it
would, indeed, give the Allen charge. Nonetheless,
because the ultimate outcome is not affected by our standard
of review, we will review this matter for an abuse of
discretion. Id.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Herra-Herra
challenges the second and third Walrath factors. The
jury deliberated approximately three hours following the
Allen instruction. Herra-Herra contends such a time
span is "more significant" than other cases where
this court has found no coercion, and cites cases where the
juries deliberated less than an hour following the charge.
E.g., United States v. Dawkins, 562 F.2d
567, 570 (8th Cir. 1977) (holding that a mere 45 minutes of
deliberation demonstrated a lack of coercion). However, in
United States v. Whatley, 133 F.3d 601, 604-05 (8th
Cir. 1998), we found that a deliberation time of four hours
after giving the charge showed that the jury carefully
considered the case rather than arriving at its conclusion
because of coercion. Under the circumstances of the instant
case, we find that the roughly three hours of ...

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